162.205 Can individual Indian landowners exempt their agricultural land from certain tribal leasing policies? HOW TO OBTAIN A LEASE 162.206 Can the terms of an agricultural lease be negotiated with the Indian landowners? 162.207 When can the Indian landowners grant an agricultural lease? 162.208 Who can represent the Indian landowners in negotiating or granting an agricultural lease? 162.209 When can BIA grant an agricultural lease on behalf of an Indian landowner? 162.210 When can BIA grant a permit covering agricultural land? 162.211 What type of valuation or evaluation methods will be applied in estimating the fair annual rental of Indian land? 162.212 When will the BIA advertise Indian land for agricultural leases? 162.213 What supporting documents must be provided prior to BIA's grant or approval of an agricultural lease? 162.214 How and when will BIA decide whether to approve an agricultural lease? 162.215 When will an agricultural lease be effective? 162.216 When will a BIA decision to approve an agricultural lease be effective? 162.217 Must an agricultural lease or permit be recorded? LEASE REQUIREMENTS 162.218 Is there a standard agricultural lease form? 162.219 Are there any provisions that must be included in an agricultural lease? 162.220 Are there any formal requirements that must be satisfied in the execution of an agricultural lease? 162.221 How should the land be described in an agricultural lease? 162.222 How much rent must be paid under an agricultural lease? 162.223 Must the rent be adjusted under an agricultural lease? 162.224 When are rent payments due under an agricultural lease? 162.225 Will untimely rent payments made under an agricultural lease be subject to interest charges or late payment penalties? 162.226 To whom can rent payments be made under an agricultural lease? 162.227 What form of rent payment can be accepted under an agricultural lease? 162.228 What other types of payments are required under an agricultural lease? 162.229 How long can the term of an agricultural lease run? 162.230 Can an agricultural lease be amended, assigned, sublet, or mortgaged? 162.231 How can the land be used under an agricultural lease? 162.232 Can improvements be made under an agricultural lease? 162.233 Who will own the improvements made under an agricultural lease? 162.234 Must a tenant provide a bond under an agricultural lease? 162.235 What form of bond can be accepted under an agricultural lease? 162.236 How will a cash bond be administered? 162.237 What insurance is required under an agricultural lease? 162.238 What indemnities are required under an agricultural lease? 162.239 How will payment rights and obligations relating to agricultural land be allocated between the Indian landowners and the tenant? 162.240 Can an agricultural lease provide for negotiated remedies in the event of a violation? LEASE ADMINISTRATION 162.241 Will administrative fees be charged for actions relating to agricultural leases? 162.242 How will BIA decide whether to approve an amendment to an agricultural lease? 162.243 How will BIA decide whether to approve an assignment or sublease under an agricultural lease? 162.244 How will BIA decide whether to approve a leasehold mortgage under an agricultural lease? 162.245 When will a BIA decision to approve an amendment, assignment, sublease, or mortgage under an agricultural lease be effective? 162.246 Must an amendment, assignment, sublease, or mortgage approved under an agricultural lease be recorded? LEASE ENFORCEMENT 162.247 Will BIA notify a tenant when a rent payment is due under an agricultural lease? 162.248 What will BIA do if rent payments are not made in the time and manner required by an agricultural lease? 162.249 Will any special fees be assessed on delinquent rent payments due under an agricultural lease? 162.250 How will BIA determine whether the activities of a tenant under an agricultural lease are in compliance with the terms of the lease? 162.251 What will BIA do in the event of a violation under an agricultural lease? 162.252 What will BIA do if a violation of an agricultural lease is not cured within the requisite time period? 162.253 Will BIA's regulations concerning appeal bonds apply to cancellation decisions involving agricultural leases? 162.608 162.609 162.610 162.611 Ownership of improvements. Payment of fees and drainage and irrigation charges. 162.612 Can a lease provide for negotiated remedies in the event of a violation? 162.613 Will BIA notify a tenant when a rent payment is due under a lease? 162.614 Will untimely rent payments made under a lease be subject to interest charges or late payment penalties? 162.615 What will BIA do if rent payments are not made in the time and manner required by a lease? 162.616 Will any special fees be assessed on delinquent rent payments due under a lease? 162.617 How will BIA determine whether the activities of a tenant under a lease are in compliance with the terms of the lease? 162.618 What will BIA do in the event of a violation under a lease? 162.619 What will BIA do if a violation of a lease is not cured within the requisite time period? 162.620 Will BIA's regulations concerning appeal bonds apply to cancellation decisions involving leases? 162.622 Can BIA take emergency action if the leased premises are threatened with immediate and significant harm? 162.623 What will BIA do if a tenant holds over after the expiration or cancellation of a lease? AUTHORITY: 5 U.S.C. 301, R.S. 463 and 465; 25 U.S.C. 2 and 9. Interpret or apply sec. 3, 26 Stat. 795, sec. 1, 28 Stat. 305, secs. 1, 2, 31 Stat. 229, 246, secs. 7, 12, 34 Stat. 545, 34 Stat. 1015, 1034, 35 Stat. 70, 95, 97, sec. 4, 36 Stat. 856, sec. 1, 39 Stat. 128, 41 Stat. 415, as amended, 751, 1232, sec. 17, 43 Stat. 636, 641, 44 Stat. 658, as amended, 894, 1365, as amended, 47 Stat. 1417, sec. 17, 48 Stat. 984, 988, 49 Stat. 115, 1135, sec. 55, 49 Stat. 781, sec. 3, 49 Stat. 1967, 54 Stat. 745, 1057, 60 Stat. 308, secs. 1, 2, 60 Stat. 962, sec. 5, 64 Stat. 46, secs. 1, 2, 4, 5, 6, 64 Stat. 470, 69 Stat. 539, 540, 72 Stat. 968, 107 Stat. 2011, 108 Stat. 4572, March 20, 1996, 110 Stat. 4016; 25 U.S.C. 380, 393, 393a, 394, 395, 397, 402, 402a, 403, 403a, 403b, 403c, 409a, 413, 415, 415a, 415b, 415c, 415d, 477, 635, 3701, 3702, 3703, 3712, 3713, 3714, 3715, 3731, 3733; 44 U.S.C. 3101 et seq. SOURCE: 66 FR 7109, Jan. 22, 2001, unless otherwise noted. Subpart A-General Provisions § 162.100 What are the purposes of this part? (a) The purposes of this part are to: (1) Identify the conditions and authorities under which certain interests in Indian land and Government land may be leased; (2) Describe the manner in which various types of leases may be obtained; (3) Identify terms and conditions that may be required in various types of leases; (4) Describe the policies and procedures that will be applied in the administration and enforcement of various types of leases; and (5) Identify special requirements that apply to leases made under special acts of Congress that apply only to certain Indian reservations. (b) This part includes six subparts, including separate, self-contained subparts relating to Agricultural Leases (Subpart B), Residential Leases (Subpart C, reserved), Business Leases (Subpart D, reserved), and Non-Agricultural Leases (Subpart F), respectively. Subpart E identifies special provisions applicable only to leases made under special acts of Congress that apply only to certain Indian reservations. Leases covered by subpart E are also subject to the general provisions in subparts A through F, respectively, except to the extent those general provisions are inconsistent with any of the special provisions in subpart E or any special act of Congress under which those leases are made. (c) These regulations apply to all leases in effect when the regulations are promulgated; however, unless otherwise agreed by the parties, these regulations will not affect the validity or terms of any existing lease. § 162.101 What key terms do I need to know? For purposes of this part: Adult means an individual who is 18 years of age or older. Agricultural land means Indian land or Government land suited or used for the production of crops, livestock or other agricultural products, or Indian land suited or used for a business that supports the surrounding agricultural community. Agricultural lease means a lease of agricultural land for farming and/or grazing purposes. AIARMA means the American Indian Agricultural Resources Management Act of December 3, 1993 (107 Stat. 2011, 25 U.S.C. 3701 et seq.), as amended on November 2, 1994 (108 Stat. 4572). Assignment means an agreement between a tenant and an assignee, whereby the assignee acquires all of the tenant's rights, and assumes all of the tenant's obligations, under a lease. BIA means the Bureau of Indian Affairs within the Department of the Interior and any tribe acting on behalf of BIA under § 162.109 of this part. Bond means security for the performance of certain lease obligations, as furnished by the tenant, or a guaranty of such performance as furnished by a third-party surety. Day means a calendar day. Emancipated minor means a person under 18 years of age who is married or who is determined by a court of competent jurisdiction to be legally able to care for himself or herself. Fair annual rental means the amount of rental income that a leased tract of Indian land would most probably com mand in an open and competitive market. Fee interest means an interest in land that is owned in unrestricted fee status, and is thus freely alienable by the fee owner. Fractionated tract means a tract of Indian land owned in common by Indian landowners and/or fee owners holding undivided interests therein. Government land means any tract, or interest therein, in which the surface estate is owned by the United States and administered by BIA, not including tribal land that has been reserved for administrative purposes. Immediate family means a spouse, brother, sister, lineal ancestor, lineal descendant, or member of the household of an individual Indian landowner. Indian land means any tract in which any interest in the surface estate is owned by a tribe or individual Indian in trust or restricted status. Indian landowner means a tribe or individual Indian who owns an interest in Indian land in trust or restricted status. Individually-owned land means any tract, or interest therein, in which the surface estate is owned by an individual Indian in trust or restricted status. Interest, when used with respect to Indian land, means an ownership right to the surface estate of Indian land that is unlimited or uncertain in duration, including a life estate. Lease means a written agreement between Indian landowners and a tenant or lessee, whereby the tenant or lessee is granted a right to possession of Indian land, for a specified purpose and duration. Unless otherwise provided, the use of this term will also include permits, as appropriate. Lessee means tenant, as defined in this section. Life estate means an interest in Indian land that is limited, in duration, to the life of the life tenant holding the interest, or the life of some other per son. Majority interest means more than 50% of the trust or restricted interests in a tract of Indian land. Minor means an individual who is less than 18 years of age. Mortgage means a mortgage, deed of trust or other instrument that pledges a tenant's leasehold interest as security for a debt or other obligation owed by the tenant to a lender or other mortgagee. NEPA means the National Environmental Policy Act (42 U.S.C. §4321, et seq.) Non compos mentis means a person who has been legally determined by a court of competent jurisdiction to be of unsound mind or incapable of managing his or her own affairs. Permit means a written agreement between Indian landowners and the applicant for the permit, also referred to as a permittee, whereby the permittee is granted a revocable privilege to use InIdian land or Government land, for a specified purpose. Remainder means an interest in Indian land that is created at the same time as a life estate, for the use and enjoyment of its owner after the life estate terminates. Restricted land ΟΥ restricted status means land the title to which is held by an individual Indian or a tribe and which can only be alienated or encumbered by the owner with the approval of the Secretary because of limitations contained in the conveyance instrument pursuant to federal law. Secretary means the Secretary of the Interior or an authorized representative. Sublease means a written agreement by which the tenant grants to an individual or entity a right to possession no greater than that held by the tenant under the lease. Surety means one who guarantees the performance of another. Tenant means a person or entity who has acquired a legal right of possession to Indian land by a lease or permit under this part. Trespass means an unauthorized possession, occupancy or use of Indian land. Tribal land means the surface estate of land or any interest therein held by the United States in trust for a tribe, band, community, group or pueblo of Indians, and land that is held by a tribe, band, community, group or pueblo of Indians, subject to federal restrictions against alienation or encum brance, and includes such land reserved for BIA administrative purposes when it is not immediately needed for such purposes. The term also includes lands held by the United States in trust for an Indian corporation chartered under section 17 of the Act of June 18, 1934 (48 Stat. 984; 25 U.S.C. §476). Tribal laws means the body of law that governs land and activities under the jurisdiction of a tribe, including ordinances and other enactments by the tribe, tribal court rulings, and tribal common law. Trust land means any tract, or interest therein, that the United States holds in trust status for the benefit of a tribe or individual Indian. Undivided interest means a fractional share in the surface estate of Indian land, where the surface estate is owned in common with other Indian landowners or fee owners. Us/We/Our means the Secretary or BIA and any tribe acting on behalf of the Secretary or BIA under $162.110 of this part. USPAP means the Uniform Standards of Professional Appraisal Practice, as promulgated by the Appraisal Standards Board of the Appraisal Foundation to establish requirements and procedures for professional real property appraisal practice. § 162.102 What land, or interests in land, are subject to these regulations? (a) These regulations apply to Indian land and Government land, including any tract in which an interest is owned by an individual Indian or tribe in trust or restricted status. (b) Where a life estate and remainder interest are both owned in trust or restricted status, the life estate and remainder interest must both be leased under these regulations, unless the lease is for less than one year in duration. Unless otherwise provided by the document creating the life estate or by agreement, rent payable under the lease must be paid to the life tenant under part 179 of this chapter. (c) In approving a lease under these regulations, we will not lease any fee interest in Indian land, nor will we collect rent on behalf of any fee owners. The leasing of the trust and restricted interests of the Indian landowners will not be conditioned on a lease having been obtained from the owners of any fee interests. Where all of the trust or restricted interests in a tract are subject to a life estate held in fee status, we will approve a lease of the remainder interests only if such action is necessary to preserve the value of the land or protect the interests of the Indian landowners. (d) These regulations do not apply to tribal land that is leased under a corporate charter issued by us pursuant to 25 U.S.C. §477, or under a special act of Congress authorizing leases without our approval under certain conditions, except to the extent that the authorizing statutes require us to enforce such leases on behalf of the Indian landowners. (e) To the extent any regulations in this part conflict with the Indian Land Consolidation Act Amendments of 2000, Public Law 106-462, the provisions of that Act will govern. § 162.103 What types of land use agreements are covered by these regulations? (a) These regulations cover leases that authorize the possession of Indian land. These regulations do not apply to: (1) Mineral leases, prospecting permits, or mineral development agreements, as covered by parts 211, 212 and 225 of this chapter and similar parts specific parts specific to particular tribes; (2) Grazing permits, as covered by part 166 of this chapter and similar parts specific parts specific to particular tribes; (3) Timber contracts, as covered by part 163 of this chapter; (4) Management contracts, joint venture agreements, or other encumbrances of tribal land, as covered by 25 U.S.C. §81, as amended; (5) Leases of water rights associated with Indian land, except to the extent the use of such water rights is incorporated in a lease of the land itself; and (6) Easements or rights-of-way, as covered by part 169 of this chapter. (b) Where appropriate, the regulations in this part that specifically refer to leases will apply to permits that au thorize the temporary, non-possessory use of Indian land or Government land, not including: (1) Land assignments and similar instruments authorizing temporary uses by tribal members, in accordance with tribal laws or custom; and (2) Trader's licenses issued under part 140 of this chapter. § 162.104 When is a lease needed to authorize possession of Indian Land? (a) An Indian landowner who owns 100% of the trust or restricted interests in a tract may take possession without a lease or any other prior authorization from us. (b) An Indian landowner of a fractional interest in a tract must obtain a lease of the other trust and restricted interests in the tract, under these regulations, unless the Indian co-owners have given the landowner's permission to take or continue in possession without a lease. (c) A parent or guardian of a minor child who owns 100% of the trust interests in the land may take possession without a lease. We may require that the parent or guardian provide evidence of a direct benefit to the minor child. When the child reaches the age of majority, a lease must be obtained under these regulations to authorize continued possession. (d) Any other person or legal entity, including an independent legal entity owned and operated by a tribe, must obtain a lease under these regulations before taking possession. $162.105 Can tracts with different Indian landowners be unitized for leasing purposes? (a) A lease negotiated by Indian landowners may cover more than one tract of Indian land, but the minimum consent requirements for leases granted by Indian landowners under subparts B through D of this part will apply to each tract separately. We may combine multiple tracts into a unit for leases negotiated or advertised by us, if we determine that unitization is in the Indian landowners' best interests and consistent with the efficient administration of the land. (b) Unless otherwise provided in the lease, the rent or other consideration |